SPEECH 


IN  THE 

SENATE  OF  THE  UNITED  STATES, 


IN  SUPPORT  OF  HIS  RESOLUTIONS  HOLDING  THAT  THE 
EDUCATIONAL  INSTITUTIONS  OF  THE  STATES  CAN 
NOT  BE  INTERFERED  WITH  BY  THE  FEDERAL 
GOVERNMENT  IN  THE  EXERCISE  OF 
ITS  TREATY-MAKING  POWER. 


Wednesday,  December  12, 1906. 


7035 


WASH  INCrTO  N\ 

1906. 


37l 


SPEECH 

OF 

HON.  I  SID  OR  RAYNBR. 


STATE  PUBLIC  SCHOOL  SYSTEM. 

Mr.  RAYNER.  Mr.  President,  I  call  up  Senate  resolution 
No.  183. 

The  VICE-PRESIDENT.  The  resolution  indicated  by  the 
Senator  from  Maryland  will  be  read. 

The  Secretary  read  the  resolutions  submitted  by  Mr.  Rayner 
on  the  4th  instant,  as  follows : 

Resolved,  That  in  the  opinion  of  the  Senate  this  Government  has  no 
right  to  enter  into  any  treaty  with  any  foreign  government  relating 
in  any  manner  to  any  of  the  public  school  systems  of  any  of  the  States 
of  the  Union  ;  and 

Resolved  further,  That  in  the  opinion  of  the  Senate  there  is  no  pro¬ 
vision  in  the  treaty  between  the  United  States  and  the  Government  of 
Japan  that  relates  in  any  manner  to  this  subject  or  in  any  way  inter¬ 
feres  with  the  right  of  the  State  of  California  to  conduct  and  admin¬ 
ister  its  system  of  public  schools  in  accordance  with  its  own  legisla¬ 
tion  ;  and 

Resolved  further,  That  it  is  the  duty  of  the  President  of  the  United 
States  to  notify  the  Government  of  Japan  and  notify  any  foreign  gov¬ 
ernment  with  whom  the  question  may  arise  that  the  public  educational 
institutions  of  the  States  are  not  within  the  jurisdiction  of  the  United 
States,  and  that  the  United  States  has  no  power  to  regulate  or  super¬ 
vise  their  administration. 

Mr.  CULLOM.  Before  the  Senator  from  Maryland  proceeds 
to  a  discussion  of  the  resolutions  I  desire  to  state  that  immedi¬ 
ately  after  the  conclusion  of  the  Senator’s  speech  I  will  ask  the 
Senate  to  proceed  to  the  consideration  of  executive  business  for 
the  purpose  especially  of  disposing  of  what  is  called  the  “  Alge- 
ciras  treaty.” 

Mr.  RAYNER.  Mr.  President,  the  proposition  covered  by  this 
resolution  is  to  my  mind  a  most  important  one.  The  President 
has  stated  in  his  message  that  the  Federal  Government  possesses 
some  power  in  connection  with  the  subject-matter  set  forth  in  the 
resolution,  and  that  everything  within  his  power  shall  be  done 
and  all  of  the  forces,  military  and  civil,  of  the  United  States, 
which  he  may  lawfully  employ  will  be  employed  for  that  pur¬ 
pose.  It  is  very  important  therefore  that  we  should  know  and 
the  country  should  know,  and  the  President  should  understand, 
whether  he  has  any  power  in  the  premises  at  all,  because  it 
is  quite  a  serious  matter  in  view  of  the  great  calamity  that 
has  lately  befallen  the  city  of  San  Francisco  for  the  President 
to  contemplate  the  bombarding  of  the  city  at  this  time,  and  to 
declare  war  against  the  boards  of  county  school  trustees  of 
California,  if  there  is  no  justification  or  pretext  upon  which 
such  ferocious  proceedings  can  be  undertaken. 

With  great  respect  and  deference  to  the  President,  he  is 
exercising  a  great  many  functions — executive,  legislative,  and 
judicial,  lawful  and  unlawful,  constitutional  and  unconstitu- 
2  7035 


3 


tional.  If  he  is  possessed  of  the  idea  that  he  is  the  super¬ 
visor  of  all  of  the  public  schools  of  the  various  States  of  the 
Union,  and  he  seems  to  be  impressed  with  this  idea,  because 
in  the  very  last  paragraph  of  his  message  he  recommends  to 
Congress  the  establishment  of  shooting  galleries  in  all  of  the 
large  public  schools  of  the  country,  we  must  either  disabuse 
his  mind  of  this  fancy  or  we  must  let  him  know  that  we  agree 
with  him  as  to  the  omnipotence  of  his  jurisdiction.  If  he  can 
take  possession  of  the  public  schools  of  California  and  compel 
the  State  to  admit  to  them  Japanese  students  contrary  to  the 
laws  of  California,  he  could  with  equal  propriety  send  us  an 
amendment  to  the  Santo  Domingo  treaty  and  demand  the  ad¬ 
mission  of  the  negro  children  of  Santo  Domingo  into  the  white 
schools  of  South  Carolina  or  of  any  other  State  of  the  Union. 
Of  course,  if  the  people  have  come  to  the  conclusion  that  every¬ 
thing  that  the  President  recommends  is  right,  then  there  is 
hardly  any  use  in  contesting  any  of  his  propositions  or  recom¬ 
mendations,  and  instead  of  conferring  upon  him  the  power  to 
give  Congress  information  of  the  state  of  the  Union,  we  might 
confer  upon  him  the  function  of  furnishing  his  own  peculiar 
views  upon  the  entire  state  of  the  universe  and  recommending 
any  improvements  or  changes  in  the  general  plan  of  creation 
that  he  may  deem  expedient,  from  the  cradle  to  the  grave.  In 
fact,  the  President,  upon  page  29  of  his  message,  anticipates  the 
•cradle  and  makes  a  recommendation  upon  the  state  of  the  Union 
that  tends  to  place  in  his  hands  the  establishment  of  the  birth 
rate  of  the  country.  Now,  if  we  can  only  supplement  this  func¬ 
tion  by  giving  him  complete  jurisdiction  over  the  death  rate  we 
wili  then  have  a  ruler  whose  ubiquity  is  uncircumscribed  and 
whose  unlimited  possibilities  are  beyond  the  reach  of  human 
contemplation. 

I  believe  that  there  is  a  sufficient  residuum  of  common  sense 
and  independent  thought  in  the  American  people  to  keep  the 
Executive  within  the  prerogatives  of  his  office  and  to  let  him 
quietly  and  respectfully  understand  that  the  Executive  chair  is 
not  exactly  the  place  from  which  to  deliver  exhortations  or  a 
course  of  didactics  upon  either  the  natural  rights  or  the  infirmi¬ 
ties  of  the  human  race,  and  that  in  his  messages  and  recom¬ 
mendations  he  ought  to  confine  himself  to  the  functions  pre¬ 
scribed  by  the  Constitution. 

I  desire  to  say,  in  passing,  that  I  coincide  with  everything 
that  the  President  says  in  praise  of  the  people  of  Japan.  In  the 
war  between  Japan  and  Russia  my  sympathies  were  entirely 
with  the  Government  of  Japan,  and  whatever  he  says  in  honor 
of  its  marvelous  race  meets  with  my  own  hearty  commendation. 
I  always  thought  it  was  a  great  shame  that  through  the  kindly 
and  well-intentioned  offices  of  the  President,  Japan  should  have 
been  overpowered  in  the  conference  room  when  she  had  been 
victorious  in  every  battle  upon  the  land  and  on  the  sea,  and  I 
think  that  the  dauntless  courage  and  the  almost  superhuman 
heroism,  against  overwhelming  odds,  of  her  military  and  naval 
forces  is  without  a  parallel  upon  the  pages  of  ancient  or  modern 
history.  I  propose  co  discuss  the  question  under  consideration 
entirely  outside  of  the  particular  circumstances  that  environ  it, 
upon  general  grounds  of  constitutional  law,  and  certainly  with 
no  feeling  of  hostility  upon  my  part  toward  this  wonderful  peo¬ 
ple  with  whom  this  controversy  has  arisen. 

7035 


4 


THE  TREATY  WITH  JAPAN - COMPARISON  WITH  CHINESE  TREATY. 

In  my  brief  argument  that  I  shall  address  to  this  body  I  shall 
plant  myself  upon  two  propositions : 

First,  that  there  is  no  provision  whatever  in  the  treaty  with 
Japan  that  confers  the  right  that  the  President  speaks  of,  or 
gives  to  the  Government  of  Japan  the  privileges  that  it  claims 
in  connection  with  the  public  school  system  of  California  or  of 
any  other  State. 

Secondly,  the  more  important  question,  if  there  was  such  a 
provision  in  this  treaty,  or  any  other  treaty  conferring  this 
right,  the  treaty  would  be  void  and  without  any  authority  upon 
the  part  of  the  United  States  to  make  it,  and  in  violation  of  the 
Constitution  and  the  treaty-making  power  of  the  Government. 

The  first  step  that  it  is  necessary  for  me  to  take  in  this  discus¬ 
sion  is  to  quote  the  provisions  of  the  treaty  with  Japan  that 
have  been  held  to  be  applicable  to  the  subject  in  hand,  the  ratifi¬ 
cations  of  which  treaty  were  exchanged  by  the  respective  Gov¬ 
ernments  on  the  21st  of  March,  1895.  I  will  ask  the  Secretary 
kindly  to  read  those  provisions.  It  will  take  but  a  moment. 

The  VICE-PRESIDENT.  Without  objection,  the  Secretary 
will  read  as  requested. 

The  Secretary  read  as  follows : 

Article  I.  The  citizens  or  subiects  of  each  of  the  two  high  con¬ 
tracting  parties  shall  have  full  liberty  to  enter,  travel,  or  reside  in  any 
part  of  the  territories  of  the  other  contracting  party,  and  shall  enjoy 
full  and  perfect  protection  for  their  persons  and  property. 

They  shall  have  free  access  to  the  courts  of  justice  in  pursuit  and 
defence  of  their  rights  ;  they  shall  be  at  liberty  equally  with  native 
citizens  or  subjects  to  choose  and  employ  lawyers,  advocates,  and 
representatives  to  pursue  and  defend  their  rights  before  such  courts, 
and  in  all  other  matters  connected  with  the  administration  of  justice 
they  shall  enjoy  all  the  rights  and  privileges  enjoyed  by  native  citizens 
or  subjects. 

In  whatever  relates  to  rights  of  residence  and  travel :  to  the  posses¬ 
sion  of  goods  and  effects  of  any  kind  ;  to  the  succession  to  personal 
estate,  by  will  or  otherwise,  and  the  disposal  of  property  of  any  sort  and 
in  any  manner  whatsoever  which  they  may  lawfully  acquire,  the  citizens 
or  subjects  of  each  contracting  party  shall  enjoy  in  the  territories  of 
the  other  the  same  privileges,  liberties,  and  rights,  and  shall  be  subject 
to  no  higher  imposts  or  charges  in  these  respects  than  native  citizens  or 
subjects  or  citizens  or  subjects  of  the  most  favored  nation.  The  citi¬ 
zens  or  subjects  of  each  of  the  contracting  parties  shall  enjoy  in  the 
territories  of  the  other  entire  liberty  of  conscience,  and,  subject  to  the 
laws,  ordinances,  and  regulations,  shall  enjoy  the  right  of  private  or 
public  exercise  of  their  worship,  and  also  the  right  of  burying  their 
respective  countrymen,  according  to  their  religious  customs,  in  such 
suitable  and  convenient  places  as  may  be  established  and  maintained 
for  that  purpose. 

They  shall  not  be  compelled,  under  any  pretext  whatsoever,  to  pay 
apy  charges  or  taxes  other  or  higher  than  those  that  are,  or  may  be 
paid  by  native  citizens  or  subjects  or  citizens  or  subjects  of  the  most 
favored  nation. 

The  citizens  or  subjects  of  either  of  the  contracting  parties  residing 
in  the  territories  of  the  other  shall  be  exempt  from  all  compulsory  mili¬ 
tary  service  whatsoever,  whether  in  the  Army,  Navy,  National  Guard, 
or  Militia;  from  all  contributions  imposed  in  lieu  of  personal  service; 
and  from  all  forced  loans  or  military  exactions  or  contributions. 

Article  XIV.  The  high  contracting  parties  agree  that,  in  all  that 
concerns  commerce  and  navigation,  any  privilege,  favor,  or  immunity 
which  either  high  contracting  party  has  actually  granted,  or  may 
hereinafter  grant,  to  the  Government,  ships,  citizens,  or  subjects  of  any 
other  State,  shall  be  extended  to  the  Government,  ships,  citizens,  or 
subjects  of  the  other  high  contracting  party,  gratuitously,  if  the  con¬ 
cession  in  favor  of  that  other  State  shall  have  been  gratuitous,  and  on 
the  same  or  equivalent  conditions  if  the  concession  shall  have  been  con¬ 
ditional  ;  it  being  their  intention  that  the  trade  and  navigation  of  each 
country  shall  be  placed,  in  all  respects,  by  the  other  upon  the  footing 
of  the  most  favored  nation. 

7035 


5 


Mr.  RAYNER.  There  is  not  a  clause  or  a  line  of  this  treaty 
that  contains  by  expression  or  intendment  the  slightest  reference 
to  the  public  school  systems  of  any  of  the  States  of  the  Union,  or 
confers  any  rights  whatever  upon  the  citizens  of  Japan  to  enjoy 
the  privileges  of  their  public  educational  institutions.  There  is 
not  a  clause  or  a  line,  although  I  understand  that  the  President 
has  been  advised  to  the  contrary,  that,  to  the  professional  mind, 
would  admit  of  such  a  construction.  The  most  liberal  inter¬ 
pretation  of  any  of  its  terms  does  not  allow  such  an  interpola¬ 
tion  or  insertion  to  he  made.  The  treaty  does  not  even  contain 
the  most-favored-nation  clause,  except  in  reference  to  the  par¬ 
ticular  objects  that  are  therein  specifically  enumerated. 

If  I  have  made  a  mistake  upon  this  point  let  some  Senator 
upon  the  floor  or  some  of  the  President’s  legal  advisers  upon 
the  treaty  refer  me  to  the  clause  that  carries  with  it  such  a 
construction.  Let  the  President  elucidate  his  message  upon 
this  point  and  give  us  the  language  in  the  treaty  that  author¬ 
ized  him  to  state  that  he  had  any  power  or  jurisdiction  over  this 
subject  whatever.  It  can  not  be  done,  because  here  is  the 
treaty,  and  no  one  arises  here  to  justify  his  construction  of  it. 
If  there  is  any  decision  in  the  United  States  that  holds  that  any 
of  the  rights  granted  by  the  treaty  carry  with  them  the  priv¬ 
ilege  to  the  subjects  of  Japan  of  even  partaking  of  the  ad¬ 
vantages  of  the  educational  system  of  our  States,  let  us  have 
that  decision.  I  have  examined  them  all  very  carefully  that 
relate  to  treaties  and  I  find  no  authority  to  sustain  such  a 
proposition. 

Now,  let  me  call  your  attention  to  a  very  peculiar  circum¬ 
stance,  and  that  is  the  Burlingame  treaty,  which  was  made  With 
China,  because  that  does  contain  such  a  provision.  It  is  only  a 
few  lines.  The  Burlingame  treaty  with  China,  which  was  pro¬ 
claimed  on  February  5,  1870,  has  the  following  provision  in  it: 

Article  VII.  Citizens  of  the  United  States  shall  enjoy  all  the  priv¬ 
ileges  of  the  public  educational  institutions  under  the  control  of  the 
Government  of  China,  and,  reciprocally,  Chinese  subjects  shall  enjoy 
all  the  privileges  of  the  public  educational  institutions  under  the  con¬ 
trol  of  the  Government  of  the  United  States  which  are  enjoyed  in  the 
respective  countries  by  citizens  or  subjects  of  the  most-fjivored  na¬ 
tion.  The  citizens  of  the  United  States  may  freely  establish  and 
maintain  schools  within  the  Empire  of  China  at  those  places  where 
foreigners  are  by  treaty  permitted  to  reside,  and,  reciprocally,  Chinese 
subjects  may  enjoy  the  same  privileges  and  immunities  in  the  United 
States. 

“  Of  the  United  States.”  It  does  not  say  “  of  the  States,”  but 
of  the  United  States. 

Mr.  BLACKBURN.  That  is  a  distinction. 

Mr.  RAYNER.  I  say  that  is  a  distinction.  I  am  coming  to 
that.  Nevertheless  it  contains  a  provision  that  the  Japanese 
treaty  does  not  contain.  The  Japanese  treaty  does  not  give  any 
rights  to  any  public  educational  institution  controlled  by  the 
United  States. 

Now,  as  I  was  going  to  say,  the  Japanese  treaty  contains 
no  such  provision  as  this,  and  the  favored  clause  does  not 
cover  it. 

Mr.  FORAKER.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Ohio? 

Mr.  RAYNER.  I  do. 

Mr.  FORAKER.  If  it  would  not  interrupt  the  Senator,  I 
7035 


6 

would  ask  him  if  he  can  state  the  respective  dates  of  those 
two  treaties? 

Mr.  RAYNER.  The  Burlingame  treaty,  February  5,  1870. 
The  ratifications  of  the  Japanese  treaty  were  exchanged  by  the 
respective  Governments  on  the  21st  of  March,  1895,  twenty-five 
years  afterwards,  and  there  is  not  a  word  of  it  in  this  Japanese 
treaty.  The  favored-nation  clause  does  not  cover  it,  because 
this  clause  is  restricted  to  the  objects  that  are  specified  in 
the  treaty  and  no  one  of  these  objects  relates  to  educational 
privileges ;  and  even  if  there  had  been  a  provision  in  the  Jap¬ 
anese  treaty  similar  to  the  one  in  the  Chinese  treaty,  it  would 
not  apply  to  this  case,  because  the  treaty  with  China  confers 
educational  privileges  in  educational  institutions  under  the  con¬ 
trol  of  the  Government  of  the  United  States,  and  neither  the 
educational  institutions  of  California  nor  of  any  other  State 
of  the  Union  are  under  the  control  of  the  United  States. 

The  educational  institutions  of  the  States  are  not  under  the 
control  of  the  Government  of  the  United  States,  and  therefore,, 
by  virtue  of  this  provision  in  this  treaty,  the  Chinese  enjoy 
no  privileges  at  all.  Therefore,  if  this  clause  had  been  incor¬ 
porated  in  the  Japanese  treaty,  as  I  shall  show  a  little  farther 
on,  it  would  not  cover  the  proposition  we  are  now  discussing. 

Mr.  FORAKER.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  further  to  the  Senator  from  Ohio? 

Mr.  RAYNER.  I  do. 

Mr.  FORAKER.  I  wish  to  call  the  Senator’s  attention  to 
the  fact  that  the  United  States  Government  has  no  educational 
institutions  as  such,  and  that  immediately  following  the  rati¬ 
fication  of  the  treaty  with  China,  and  ever  since  that,  under 
the  clauses  granting  certain  exceptions,  Chinese  students  have 
been  entitled,  except  as  it  has  been  modified  by  treaty  since,, 
to  come  to  this  country  and  seek  education  *in  the  institutions, 
that  are  situated  within  the  States  and  are  not  at  all  under  the 
control  of  the  United  States  Government. 

Mr.  RAYNER.  There  is  no  doubt  about  that  proposition. 
Any  of  the  States  may  admit  any  Chinese  or  Japanese  stu¬ 
dent  or  any  other  sort  if  they  choose  who  are  in  the  United 
States.  That  in  entirely  within  the  province  of  the  State,  but 
the  question  here  is  a  question  of  alleged  discrimination  in  the 
public  school  system  of  California.  Massachusetts  or  any  other 
State  of  the  Union  has  a  perfect  right  to  admit  any  Chinese  or 
Japanese  who  are  here.  That  does  not  affect  the  question,  I 
respectfully  submit,  that  I  am  discussing.  I  absolutely  deny 
that  the  admission  of  these  students  into  the  educational  insti¬ 
tutions  of  the  State  is  in  compliance  with  and  in  furtherance  of 
the  treaty. 

I  might  rest  this  entire  subject  right  here,  because  this  is  an 
end  of  the  claim  of  Japan  if  the  treaty  does  not,  either  by  expres¬ 
sion  or  intendment,  contain  the  controverted  matter,  but  I  have 
arisen  for  a  larger  purpose  and  a  deeper  inquiry ;  and  inasmuch 
as  what  has  taken  place  here  may  occur  over  and  over  again 
under  the  treaty-making  power  of  the  United  States,  I  shall  now 
proceed  to  the  more  important  proposition,  and  that  is  that  this 
Government  has  no  power  under  the  Constitution  of  the  United 
States  to  make  any  treaty  with  any  foreign  government  covering 
the  subject  in  question,  or  overriding  the  legislation  of  any  State 
of  the  Union  in  connection  therewith. 

7035 


7 


THE  ISSUES  INVOLVED  IN  THE  CONTROVERSY. 

Now,  let  me  quote — because  I  must  say  that  to  me  it  has  been 
the  most  interesting  subject  in  constitutional  law,  at  least  that  I 
have  ever  examined  or  been  interested  in — the  sixth  article  of 
the  Constitution.  It  is  not  an  academic  discussion ;  it  is  likely 
to  occur  over  and  over  again  with  all  our  oriental  possessions, 
because  if  the  President  persists  in  his  purpose,  the  day  will 
come  when  he  will  demand  that  he  has  the  right,  either  under 
the  treaty-making  power  or  under  the  amendments  to  the  Consti¬ 
tution,  to  exercise  this  privilege  in  connection  with  the  admission 
of  foreign  students  into  the  public  educational  institutions  of  the 
States. 

Now,  one  may  read  this  article  of  the  Constitution  without  un¬ 
derstanding  it.  Just  read  it.  Let  a  layman  read  it.  It  leaves 
an  impression  upon  the  mind  of  every  man  who  has  not  studied 
the  Constitution  that  the  treaty  overrides  the  reserved  rights  of 
the  States  whenever  it  comes  in  contact  with  them.  No  matter 
how  brilliant  the  lawyer  may  be,  no  matter  what  his  talents  or 
resources  may  consist  of,  I  do  not  care  for  the  opinion  of  anyone 
who  has  not  thoroughly  mastered  and  analyzed  the  authorities 
upon  this  subject  and  made  the  proper  discriminations  between 
them : 

This  Constitution  and  the  laws  of  the  United  States  which  shall  he 
made  in  pursuance  thereof,  and  all  treaties  made  or  which  shall  be 
made  under  the  authority  of  the  United  States — 

Now,  that  is  the  distinction  that  the  extreme  school  plants 
itself  on  between  these  two  propositions.  When  it  speaks  of 
laws,  it  says  laws  which  shall  be  made  in  pursuance  of  the  Con¬ 
stitution.  When  the  Constitution  speaks  of  treaties,  it  says  that 
all  treaties  which  shall  be  made  under  the  authority  not  of  the 
Constitution,  but  of  the  United  States.  I  shall,  I  think,  demon¬ 
strate  within  a  few  moments  that  there  is  no  possible  distinc¬ 
tion  in  the  authorities  between  these  two  clauses. 

This  sixth  article,  which  lies  at  the  bottom  of  this  controversy, 
reads  partly  as  follows  : 

Article  VI.  This  Constitution  and  the  laws  of  the  United  States 
which  shall  he  made  in  pursuance  thereof,  and  all  treaties  made  or 
which  shall  be  made  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land,  and  the  judges  in  every  State  shall  be 
hound  thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding. 

I  plant  myself  firmly  and  unalterably  upon  the  proposition 
that  we  can  make  no  treaty  that  violates  any  of  the  provisions 
of  the  Constitution  of  the  United  States,  that  the  treaty-making 
power  in  the  sixth  article  must  be  construed  in  pari  materia  with 
all  the  other  provisions  contained  in  the  Constitution,  and  if  the 
treaty  comes  in  conflict  with  any  of  the  limitations  of  the  instru¬ 
ment  the  treaty  must  yield  and  the  Constitution  prevail. 

As  a  corollary  of  this  proposition  I  plant  myself  upon  the 
doctrine  that  any  treaty  that  violates  Article  X  of  the  Consti¬ 
tution  and  infringes  upon  the  reserved  rights  of  the  States 
which  have  not  been  delegated  to  the  General  Government,  and 
embraces  subjects  that  belong  to  the  States,  and  that  are  not 
necessary  to  carry  out  the  purposes  of  the  Government  as  defined 
in  the  Constitution,  is  ultra  vires  and  not  within  the  capacity 
of  the  Government  to  make. 

It  is  my  opinion  that  this  subject  involves  one  of  the  most 
interesting  problems  that  has  ever  been  before  this  body,  and 
that  the  suggestion  in  the  message  of  the  President,  with  great 
7035 


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respect  to  him,  is  not  of  the  slightest  value  here,  because  in  ordev 
to  arrive  at  a  proper  conclusion  upon  this  important  inquiry  it 
is  necessary  to  assiduously  examine  the  great  mass  of  prece¬ 
dents,  and  authorities,  and  decisions  that  have  been  rendered 
upon  the  subject,  and  I  am  quite  sure  that  I  am  entirely  within 
bounds  when  I  say  that  the  President  has  not  undertaken  this 
task. 

THE  SEVERAL  SCHOOLS  OF  CONSTRUCTION. 

There  are  two  separate  schools  of  construction  upon  the  sub¬ 
ject  at  issue.  These  schools  are  professional  schools  and  schools 
of  commentators  and  text  writers  upon  the  Constitution,  and  it 
is  not  entirely  accurate  to  designate  them  as  the  respective  advo¬ 
cates  of  national  and  States’  rights  systems. 

One  of  these  schools  claims  that  the  treaty-making  power  is 
an  inherent  element  of  sovereignty,  and  though  it  is  a  conferred 
power  in  the  Constitution  it  would  exist  as  an  essential  attribute 
of  this  Government  without  delegation,  and  that  when  it  is  once 
delegated  it  need  not  derive  its  authority  from  the  Constitution, 
and  that  whenever  it  comes  in  conflict  with  the  provisions  of  a 
State  law  or  a  State  constitution,  by  the  terms  of  Article  VI  of 
the  Constitution  the  treaty  prevails.  Some  of  the  adherents  of 
this  school  have  proceeded  to  the  most  unfortunate  limits  in 
their  construction  of  the  treaty-making  power,  and  have  held 
that  this  power  is  superior  to  the  Constitution  and  is  not  in  any 
manner  governed  by  its  inhibitions  or  limitations. 

The  second  school  stands  upon  the  doctrine  that  the  treaty¬ 
making  power  exists  for  the  purpose  of  carrying  out  the  pur¬ 
poses  and  objects  of  this  Government  as  prescribed  and  defined 
by  the  Constitution,  and  that  no  treaty  is  valid  that  violates  the 
Constitution  or  that  under  its  provisions  surrenders  the  rights 
reserved  and  belonging  to  the  States. 

I  am  a  disciple  of  the  second  school,  not  alone  as  a  party  man, 
but  as  a  student  of  Constitutional  history,  and  I  proceed  now  to 
give  the  reasons  for  the  faith  that  is  in  me. 

The  most  instructive  step  that  I  can  take  in  this  discussion  is 
to  give,  in  the  language  of  their  advocates,  the  two  standards 
that  separate  these  two  political  creeds,  so  that  the  distinguish¬ 
ing  features  between  them  can  be  clearly  and  fully  compre¬ 
hended  and  understood. 

Mr.  Charles  Henry  Butler,  the  present  reporter  of  the  Supreme 
Court,  and  a  man  of  great  learning  and  industry,  in  a  valuable 
text-book  that  he  has  written  upon  the  treaty-making  power  of 
the  United  States,  which  I  think  is  mainly  wrong  in  the  conclu¬ 
sions  that  it  reaches,  but  which  is  full  of  the  most  interesting 
information  upon  the  subject,  thus  states  his  own  views  and  the 
views  of  those  who  belong  to  the  first  school  of  treaty-making 
power  interpretation  that  I  have  referred  to : 

First.  That  the  treaty-making  power  of  the  United  States,  as  vested 
in  the  central  Government,  is  derived  not  only  from  the  nowers  ex¬ 
pressly  conferred  by  the  Constitution,  hut  that  it  is  also  possessed  by 
that  Government  as  an  attribute  of  sovereignty,  and  that  it  extends  to 
every  subject  which  can  be  the  basis  of  negotiation  and  contract  be¬ 
tween  any  of  the  sovereign  powers  of  the  world,  or  in  regard  to  which 
the  several  States  of  the  Union  themselves  could  have  negotiated  and 
contracted  if  the  Constitution  bad  not  expressly  prohibited  the  States 
from  exercising  the  treaty-making  power  in  any  manner  whatever  and 
vested  that  power  exclusively  in  and  expressly  delegated  it  to  the 
Federal  Government. 

Second.  That  the  power  to  legislate  in  regard  to  all  matters  affected 
by  treaty  stipulations  and  relations  is  coextensive  with  the  treaty-mak¬ 
ing  power,  and  that  acts  of  Congress  enforcing  such  stipulations  which, 

7035 


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in  the  absence  of  treaty  stipulations,  would  he  unconstitutional  as  in¬ 
fringing  upon  the  powers  reserved  to  the  States,  are  constitutional,  and 
can  be  enforced,  even  though  they  may  conflict  with  State  laws  or  pro¬ 
visions  of  State  constitutions. 

Third.  That  all  provisions  in  State  statutes  or  constitutions  which  in 
any  way  conflict  with  any  treaty  stipulations,  whether  they  have  been 
ma.de  prior  or  subsequent  thereto,  must  give  way  to  the  provisions  of 
the  treaty,  or  act  of  Congress  based  on  and  enforcing  the  same,  even  if 
such  provisions  relate  to  matters  wholly  within  State  jurisdiction. 

The  tenets  of  the  school  in  which  I  have  been  trained  are 
succinctly  stated  in  a  masterly  way  by  that  eminent  consti¬ 
tutional  lawyer,  the  Hon.  John  Randolph  Tucker,  in  a  report 
that  he  rendered  to  the  Forty-eighth  Congress,  and  which  reads, 
in  part,  as  follows  : 

The  language  of  the  Constitution  of  the  United  States  which  gives 
the  character  of  “  supreme  law  ”  to  a  treaty,  confines  it  to  “  treaties 
made  under  the  authority  of  the  United  States.”  That  authority  is 
limited  and  defined  by  the  Constitution  itself.  The  United  States 
have  no  unlimited,  but  only  delegated  authority.  The  power  to  make 
treaties  is  hounded  by  the  same  limits,  which  are  prescribed  for  the 
authority  delegated  to  the  United  States  by  the  Constitution.  To 
suppose  that  a  power  to  make  treaties  with  foreign  nations  is  un¬ 
limited  by  the  restraints  imposed  on  the  power  delegated  to  the  United 
States  would  he  to  assume  that  by  euch  treaty  the  Constitution  itself 
might  be  abrogated  and  the  liberty  of  the  people  secured  thereby 
destroyed.  The  power  to  contract  must  be  commensurate  with  and 
not  transcend  the  powers  by  virtue  of  which  the  United  States  and 
their  Government  exist  and  act.  It  can  not  contract  with  a  foreign 
nation  to  do  what  is  unauthorized  or  forbidden  by  the  Constitution 
to  be  done.  The  power  to  contract  is  limited  by  the  power  to  do. 
(3  Story,  Com.  on  Const.,  sec.  1501.) 

It  is  on  this  principle  that  a  treaty  can  not  take  away  essential 
liberties  secured  by  the  Constitution  to  the  people.  The  treaty  power 
must  be  subordinate  to  these.  A  treaty  can  not  alien  a  State  or  dis¬ 
member  the  Union,  because  the  Constitution  forbids  both. 

In  all  such  cases  the  legitimate  effect  of  a  treaty  is  to  bind  the 
United  States  to  do  what  they  are  competent  to  do  and  no  more. 
The  United  States  by  treaty  can  only  agree  with  another  nation 
to  perform  what  they  have  authority  to  perform  under  the  constitu¬ 
tional  charter  creating  them.  The  treaty  makes  the  nexus  which 
binds  the  faith  of  the  Union  to  do  what  their  Constitution  gives 
authority  to  do.  A  treaty  made  under  that  authority  may  do  this ; 
all  it  attempts  to  do  beyond  it  is  ultra  vires — is  null,  and  can  not 
bind  them. 

Iii  this  admirable  report  and  careful  review  of  the  treaty- 
making  power  Mr.  Tucker  remarks  that — 

If  the  treaty-making  power  extends  to  the  limits  that  are  claimed 
for  it  by  the  advocates  of  an  inherent  right,  then  a  treaty  may  borrow 
money,  regulate  commerce,  coin  money,  establish  post-offices,  and  pro¬ 
vide  for  raising  armies  and  navies  of  the  United  States,  and  may  thus 
annul  or  paralyze  all  the  powers  of  Congress,  and  admit  a  foreign 
nation  to  exact,  with  the  alternative  of  war,  a  compliance  with  these 
sweeping  stipulations  in  the  internal  government  of  the  people  of  the 
United  States. 

I  am  aware  of  the  fact  that  some  of  the  conclusions  reached 
by  this  eminent  statesman  in  this  report  have  been  assailed  at 
times,  but  I  am  also  aware  of  the  fact  that  the  main  proposi¬ 
tion  upon  which  he  stands,  and  from  which  I  have  quoted  in 
the  first  instance,  has  never  been  impeached  nor  impugned  by 
any  Federal  or  State  authority  that  I  know  of. 

'  A  TKEATY  CAN  NOT  VIOLATE  THE  CONSTITUTION. 

I  want  to  proceed  one  step  further  in  the  particular  point  that 
I  am  now  discussing,  and  I  desire  to  address  these  remarks  to 
the  extreme  advocates  of  the  doctrine  of  an  “  unlimited  treaty¬ 
making  power.” 

Let  me  take  subsection  8  of  section  9  of  Article  I  of  the  Con¬ 
stitution  of  the  United  States,  which  provides  “  that  no  title  of 
nobility  shall  be  granted  by  the  United  States.”  Is  there  anyone 
7035 


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here  that  believes  we  would  have  the  right  in  a  treaty  to  grant 
a  title  of  nobility  to  the  subject  of  a  foreign  government? 

Subsection  4  of  section  1  of  Article  II  of  the  Constitution  pro¬ 
vides  “  that  no  person  except  a  natural-born  citizen  *  *  * 

shall  be  eligible  to  the  office  of  President.”  Does  anyone  here 
believe  that  we  could  make  a  treaty  with  a  foreign  power  abro¬ 
gating  this  section  in  its  interests? 

Article  I  of  the  amendments  provides :  “Congress  shall  make 
no  law  respecting  an  establishment  of  religion  or  prohibiting  the 
free  exercise  thereof.”  Is  there  anyone  of  the  opinion  that  we 
could  make  a  treaty  with  a  foreign  nation  admitting  their  sub¬ 
jects  to  our  shores,  and  then,  in  the  same  treaty,  provide  that 
they  should  not  have  the  privilege  of  exercising  their  religious 
belief? 

Mr.  President,  I  am  talking  to  the  extreme  advocates  of  this 
doctrine.  I  am  coming  to  the  middle  class  presently.  I  am 
taking  now  the  doctrine  of  the  men  who  claim  that  the  treaty¬ 
making  power  is  an  inherent  power,  and  is  not  circumscribed 
either  by  the  delegated  powers  or  by  the  limitations  or  inhibi¬ 
tions  of  the  Constitution.  I  will  come  to  the  men  of  more  mod¬ 
erate  views  of  the  first  school  in  a  few  moments.  I  am  plant¬ 
ing  this  argument  now  upon  the  doctrine  that  the  treaty¬ 
making  power  is  an  inherent  power  that  is  not  governed  or 
controlled  at  all  by  the  Constitution  of  the  United  States. 

Mr.  BEVERIDGE.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Indiana? 

Mr.  RAYNER.  Certainly. 

Mr.  BEVERIDGE.  Might  not  the  power  be  inherent  in  sov¬ 
ereignty  and  at  the  same  time  be  limited  by  the  Constitution? 

Mr.  RAYNER.  Never.  It  can  not  lie  in  grant  and  lie  in 
sovereignty.  It  must  either  lie  in  sovereignty  or  lie  in  grant. 
There  is  no  such  thing  as  a  granted  power  under  the  Constitu¬ 
tion  carrying  within  its  terms  an  inherent  and  sovereign  power. 
I  utterly  deny  the  suggestion  of  the  Senator  from  Indiana. 
Whatever  inherent  powers  exist  have  been  merged  forever  in 
the  granted  powers  of  the  Constitution.  It  must  be  either  one 
or  the  other. 

Mr.  BEVERIDGE.  That  was  not  my  question,  although  I  am 
happy  to  hear  the  Senator  upon  that. 

Mr.  RAYNER.  Then  I  misunderstood  the  Senator. 

Mr.  BEVERIDGE.  The  question  was,  Might  not  the  power 
be  inherent  in  sovereignty  and  at  the  same  time  be  limited  by 
the  prohibitions  of  the  Constitution? 

Mr.  RAYNER.  There  is  not  an  inherent  power  in  the  Gov¬ 
ernment  of  the  United  States,  because  the  Government  of  the 
United  States  is  not  a  government  of  inherent  powers.  I  deny 
that  the  Government  of  the  United  States  has  any  inherent 
powers  save  the  power  to  exist  and  to  perpetuate  itself,  and 
while  it  might  be  inherent  and  still  limited,  the  fact  is  it  is 
not  inherent.  That  answers  the  question. 

Mr.  CARMACK.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Tennessee? 

Mr.  RAYNER.  I  do. 

Mr.  CARMACK.  I  wish  to  suggest  to  the  Senator  from  Mary¬ 
land  that  each  of  the  States  prior  to  the  formation  of  the  Con¬ 
stitution  of  the  United  States  possessed  this  treaty-making 
7035 


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power,  and  that  the  General  Government  possesses  it  now  only 
by  reason  of  its  delegation  by  the  States. 

Mr.  CULBERSON.  The  States  possessed  it  inherently. 

Mr.  CARMACK.  They  possessed  it  inherently  ;  and  the  Gen¬ 
eral  Government  gets  it  by  delegation  from  the  States. 

Mr.  RAYNER.  I  was  coming  to  that  proposition  in  a  mo¬ 
ment.  I  think  the  Senator  from  Tennessee  states  that  propo¬ 
sition  a  little  too  broadly — that  is,  that  the  States  granted  to 
the  United  States  all  the  powers  they  possessed. 

Mr.  CARMACK.  I  did  not  say  that. 

Mr.  RAYNER.  I  beg  pardon.  I  understood  the  Senator  to 
say  that  the  States  had  granted  to  the  United  States  all  the 
treaty-making  power. 

Mr.  CARMACK.  No  ;  I  did  not  mean  that ;  but  all  the  pow¬ 
ers  the  General  Government  possesses  in  that  respect  are  de¬ 
rived  from  the  grant  by  the  States - 

Mr.  RAYNER.  Undoubtedly. 

Mr.  CARMACK.  That  all  the  treaty-making  power  was  in 
the  States  prior  to  the  formation  of  the  Constitution.  Each 
State  possessed  the  treaty-making  power.  When  the  Constitu¬ 
tion  was  formed  the  States  delegated  to  the  General  Govern¬ 
ment  the  treaty-making  power,  and  the  treaty-making  power 
possessed  by  the  General  Government  is  measured  by  the  ex¬ 
tent  of  that  delegation. 

Mr.  FULTON.  May  I  ask  the  Senator  from  Tennessee  [Mr. 
Carmack]  a  question? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Oregon? 

Mr.  RAYNER.  I  wish  the  Senator  would  ask  me  the  ques¬ 
tion. 

Mr.  FULTON.  Then  I  will  ask  the  Senator  if  that  delega¬ 
tion  of  power  to  the  General  Government,  when  exercisable,  is 
nevertheless  not  restricted  by  the  prohibition  on  the  General 
Government  contained  in  the  Federal  Constitution? 

Mr.  RAYNER.  Mr.  President,  I  am  coming  to  the  argument 
of  that  question  in  a  moment. 

I  want,  first,  to  say  something  in  reference  to  the  suggestion 
of  the  Senator  from  Tennessee  [Mr.  Carmack].  Of  course,  the 
Senator  from  Tennessee  recollects  that  in  the  Articles  of  Con¬ 
federation  it  was  provided  that  no  treaty  should  be  made  unless 
nine  of  the  States  consented ;  but  the  suggestion  made  by  the 
Senator  is  absolutely  correct  as  to  the  proposition  upon  which 
I  stand,  that  all  powers  of  the  Constitution — the  treaty-making 
power  and  every  other  power — are  derived  from  the  powers 
given  by  the  States.  Of  course,  I  can  not  admit  that  they  have 
given  all  their  treaty-making  power,  because  they  have  only  given 
the  treaty-making  power  in  connection  with  the  delegated  power, 
although  the  State  itself  has  no  right  to  make  a  treaty  under 
the  Constitution.  While  I  can  not  admit  that  the  States  gave 
all  the  treaty-making  power,  I  will  undoubtedly  admit  that  the 
States  gave  every  treaty-making  power  that  was  necessary  for 
the  purpose  of  carrying  out  the  delegated  powers  of  the  Con¬ 
stitution,  and  there  are  no  other  powers  necessary. 

Mr.  BEVERIDGE.  Will  the  Senator  allow  me? 

Mr.  RAYNER.  In  a  moment.  I  have  examined,  I  think, 
every  treaty  in  existence  between  this  Government  and  every 
other  government,  and  I  can — though  I  do  not  propose  to  do  it 
now,  because  it  would  take  too  much  time — but  I  can  now  show, 
7035 


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and  I  am  willing  to  trace  every  subject-matter  in  those  treaties 
ever  made  with  any  foreign  government  to  some  delegated  power 
contained  in  the  Constitution  of  the  United  States.  I  challenge 
the  Senator  from  Indiana  to  point  me  to  a  single  case  that  will 
show  this  Government  has  ever  made  a  treaty  passed  upon  by 
the  courts,  and  held  to  be  valid  by  the  courts,  that  was  not  for 
the  purpose  of  carrying  out  the  delegated  powers  of  the  Consti¬ 
tution  conferred  upon  the  United  States.  # 

Mr.  BEVERIDGE.  Mr.  President - 

Mr.  RAYNER.  Let  me  give  one  more  quotation,  and  then  I 
-.-ill  vinM.  Secticn  1  of  Article  XIII  of  the  amendments  to  the 
Constitution  provides  that — 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States  or  any  place  subject  to  their  jurisdiction. 

Is  this  an  inherent  power?  Is  there  any  power  under  the 
treaty-making  power,  except  the  power  to  carry  out  the  dele¬ 
gated  powers  of  the  United  States?  According  to  Mr.  Butler 
and  the  various  lecturers  upon  the  revised  edition  of  the 
United  States  Constitution,  who  agree  with  him,  it  is  claimed 
that  the  power  is  not  bound  by  the  limitations  of  the  Consitu- 
tion.  I  ask,  is  there  anyone  here  who  believes  that  we  could 
have  put  a  provision  into  the  treaty  of  Paris  providing  for  a 
system  of  slavery  in  the  Philippine  Islands?  If  it  is  an  in¬ 
herent  power,  if  it  does  not  depend  upon  the  delegated  powers, 
if  it  is  a  sovereign  power  beyond  and  above  the  Constitution, 
then  we  can  violate  every  article  in  the  Constitution,  and  there 
would  be  no  inhibition  upon  us  at  all  from  violating  this  par¬ 
ticular  provision  and  instituting  or  continuing,  as  I  believe  we 
have  done  anyway  in  a  portion  of  the  Philippine  Islands — the 
Senator  from  Indiana  will  know  more  about  that  question  than 
I  do — the  system  of  slavery  that  exists  in  a  certain  portion  of 
those  islands. 

Mr.  BEVERIDGE.  I  want  to  ask  the  Senator  a  question 
before  he  leaves  that  subject. 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Indiana? 

Mr.  RAYNER.  Certainly. 

Mr.  BEVERIDGE.  It  was  rather  an  interesting  statement 
the  Senator  made,  that  he  did  not  concede  that  the  States  had 
delegated  away  all  of  their  treaty-making  power.  Under  sec¬ 
tion  10  of  Article  I  of  the  Constitution,  what  part  of  the  treaty¬ 
making  power  does  the  Senator  think  any  State  has? 

Mr.  RAYNER.  No  State  has  any  treaty-making  power,  ex¬ 
cept  as  provided  in  the  Constitution.  The  States  have  delegated 
to  the  Federal  authorities  all  the  treaty-making  power  that  it 
is  necessary  for  the  Government  to  have  in  order  to  carry  out 
the  delegated  powers  of  the  Constitution. 

Mr.  BEVERTDGE.  I  understood  the  Senator  to  say  a  mo¬ 
ment  ago,  in  answer  to  the  Senator  from  Tennessee  [Mr.  Car¬ 
mack].  that  he  did  not  concede  that  the  States  had  parted  with 
all  of  their  treaty-making  powers.  I  merely  call  his  attention 
to  section  10  of  Article  I  of  the  Constitution. 

Mr.  RAYNER.  I  said  the  Constitution  prohibits  the  States 
from  making  a  treaty. 

Mr.  BEVERIDGE.  Certainly. 

Mr.  RAYNER.  The  Federal  Government  can  make  every 
treaty,  and  the  States  have  given  the  Government  the  right  to 
7035 


I 


✓ 


13 


make  every  treaty  that  is  necessary  to  carry  out  its  delegated 
powers,  and  you  must  take  the  treaty-making  power  in  pu-i  ma¬ 
teria  with  the  delegated  powers  that  are  given  to  the  Govern¬ 
ment.  I  can  not  make  it  any  plainer  than  that.  I  will  give  you 
what  Mr.  Adams  says  on  that  presently,  and  a  number  of  your 
friends  and  some  of  my  friends — Mr.  Jefferson  and  others — and, 
I  think,  you  will  agree  with  me.  I  have  stated  the  proposition 
almost  in  their  identical  language.  I  say  that  the  States  have 
given  to  the  Federal  Government  the  right  to  make  treaties,  but 
they  have  only  given  it  the  right  to  make  such  treaties  as  carry 
out  the  delegated  powers  of  the  Constitution,  and  they  have 
never  given  it  the  right  to  make  any  treaty  that  interferes  with 
the  reserved  rights  of  sovereign  States  acting  within  their  own 
borders. 

Mr.  BEVERIDGE.  Then  I  understand  the  Senator  does  not 
contend  that  the  States  have  reserved  to  themselves  at  all  any 
portion  of  the  treaty-making  power.  That  is  made  clear. 

Mr.  RAYNER.  Look  at  the  Constitution ;  that  settles  the 
rights  of  the  States.  The  Government  can  make  any  treaty  that 
carries  out  the  purpose  of  the  Government.  My  argument  is 
that  you  must  take  the  treaty-making  powers  together  with  the 
delegated  powers,  and  you  can  not  construe  one  independently 
of  the  other. 

Mr.  FORAKER.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Ohio? 

Mr.  RAYNER.  I  do. 

Mr.  FORAKER.  I  only  want  to  remark,  if  I  may  be  per¬ 
mitted  to  do  so,  that  the  result  of  the  Senator’s  contention,  as 
I  understand,  is  that  that  part  of  the  old  treaty-making  power 
which  the  States  originally  possessed  has  become  dormant  or 
has  been,  by  the  provisions  of  the  Constitution,  placed  in  abey¬ 
ance,  does  not  belong  to  anybody,  and  can  not  be  exercised  by 
any  governmental  authority  anywhere. 

Mr.  RAYNER.  The  Senator  from  Ohio  evidently  has  misun¬ 
derstood  me.  I  will  state  the  proposition  over  again. 

Mr.  FORAKER.  I  hope  the  Senator  will  not - 

Mr.  RAYNER.  I  want  to  answer  the  Senator’s  observation. 
There  is  no  dormant  power  anywhere,  because  the  Government 
of  the  United  States  contains  the  full  treaty-making  power  for 
the  purpose  of  carrying  out  all  of  its  delegated  powers,  and 
there  is  no  dormant  power  any  place  under  the  Constitution. 
Every  power  under  treaties  necessary  to  perfect  the  delegated 
powers  has  been  parted  with  by  the  States,  and  the  States  have 
parted  with  their  treaty-making  power,  hut  I  repeat  again  that 
the  treaty-making  power  must  be  construed  in  pari  materia 
with  the  delegated  powers. 

Mr.  BACON.  Will  the  Senator  permit  me  a  moment? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Georgia? 

Mr.  RAYNER.  Yes. 

Mr.  BACON.  In  connection  with  his  suggestion  as  to  whether 
or  not  the  powers  are  dormant,  I  wish  to  call  the  attention  of 
the  Senator  to  the  fact  that  the  Constitution  does  contemplate 
that  there  may  be  questions  in  which  a  State  may  be  interested 
and  which  may  require  a  compact  or  a  treaty  which  are  not  Fed¬ 
eral  questions ;  but  its  exercise  of  any  power  in  connection  with 
that  is  restricted  and  made  dependent  upon  the  consent  of  Con 
7035 


14 


gress.  I  will  read  the  section  to  which  I  allude  as  illustrative 
of  the  question  propounded  by  the  Senator  from  Ohio  in  connec¬ 
tion  with  the  contention  of  the  Senator  from  Maryland.  Arti¬ 
cle  1,  section  10,  paragraph  3,  of  the  Constitution,  to  be  found 
on  page  201  of  the  present  edition  of  the  Constitution  and 
Manual,  reads  as  follows : 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  ton¬ 
nage,  keep  troops,  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

If  the  Senator  will  pardon  me  just  a  moment,  the  point  in 
connection,  I  think,  with  the  subject  under  discussion  is  illus¬ 
trative  of  the  fact  that  it  was  in  the  contemplation  of  the  Con¬ 
stitution  that  there  were  subjects-matter  possible  of  compacts 
or  treaties  in  which  the  States  might  be  direcly  interested  and 
which  did  not  relate  to  the  General  Government  in  its  Federal 
capacity,  but  which  subjects  were  in  their  treatment  by  the 
States  or  in  dealing  with  by  the  States  so  restricted  that  there 
could  be  no  action  with  reference  thereto  unless  Congress 
should  consent ;  in  other  words,  that  there  were  questions  which 
could  be  and  properly  would  be  the  subjects-matter  of  treaties 
interesting  the  States  directly,  but  which  were  subsidiary  en¬ 
tirely  to  the  general  power  of  the  Government  and  required  to 
be  subject  to  its  supervision. 

Mr.  RAYNER.  Mr.  President,  I  was  coming  to  that  in  a 
moment.  While  I  am  quite  willing  to  submit  to  any  interrup¬ 
tions,  I  think  there  will  be  plenty  of  questions  to  ask  me  when 
I  get  into  the  cases. 

Mr.  CULBERSON.  Will  the  Senator  allow  me  just  to  read 
another  section  of  the  Constitution  which  will  clear  up  this  par¬ 
ticular  matter? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  Texas? 

Mr.  RAYNER.  I  was  going  to  read  all  of  those  sections,  I 
will  say  to  the  Senator.  I  have  the  clause  in  mind  to  which 
he  refers.  ' 

Mr.  CULBERSON.  What  clause  is  it? 

Mr.  RAYNER.  There  are  three  clauses  I  was  going  to  read 
from  the  Constitution.  The  first  clause  is  in  relation  to  the 
right  of  the  President  and  the  Senate  to  make  a  treaty ;  the  sec¬ 
ond  clause  the  Senator  from  Georgia  [Mr.  Bacon]  has  read, 
and  the  third  clause  is  the  clause  prohibiting  a  State  from 
making  a  treaty. 

Mr.  CULBERSON.  That  is  the  one  I  desired  to  read. 

Mr.  RAYNER.  Do  not  misunderstand  my  purpose.  I  am 
willing  that  the  Senator  should  interrupt  me. 

Mr.  CULBERSON.  It  is  very  pertinent,  Mr.  President,  I 
think,  in  this  connection,  and  it  would  be  well  to  read  it.  It  is 
section  10,  Article  I,  of  the  Constitution,  which  declares : 

No  State  shall  enter  into  any  treaty,  alliance,  or  confederation. 

Mr.  BEVERIDGE.  That  is  the  section  to  which  I  specifically 
called  the  Senator’s  attention  a  moment  ago  when  the  Senator 
ventured  the  remark  that  the  States  had  not  parted  with  all 
their  treaty-making  power. 

Mr.  RAYNER.  Do  not  let  the  Senator  from  Indiana  misun¬ 
derstand  that  proposition.  Do  not  let  us  get  him  wrong - 

Mr.  BEVERIDGE.  No. 

7035 


15 


Mr.  RAYNER.  Because  I  understand  the  Senator  delivered  a 
lecture  on  that  subject,  and  while  I  am  against  the  lecture,  I 
do  not  want  the  Senator  from  Indiana  to  misconstrue  what  I 
have  said  on  this  subject  I  say,  again  and  again,  the  States 
have  granted  to  the  Federal  Government  all  their  treaty-making 
powers  that  are  necessary  to  carry  out  the  purpose  of  the  Gov¬ 
ernment  as  constituted  by  the  Constitution.  That  is  the  exact 
language  of  Mr.  Jefferson,  and  I  can  not  improve  on  it.  It  has 
never  been  improved  on,  except  by  Mr.  Butler,  who  says  Jeffer¬ 
son  has  been  reversed.  Jefferson  has  never  been  reversed  by 
anybody  except  Mr.  Butler,  and  I  will  take  Jefferson  against 
my  friend  and  the  distinguished  reporter  of  the  Supreme  Court 
on  that  subject. 

This  brings  me  right  down  to  the  precise  point  involved  in 
this  discussion,  and  that  is  to  the  tenth  article  of  the  amend¬ 
ments,  which  reads  as  follows : 

Article  10.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States,  respectively,  or  to  the  people. 

Have  we  a  right  to  violate  the  Constitution  of  the  United 
States  and  incorporate  in  a  treaty  powers  not  delegated  to  the 
United  States,  powers  that  are  not  necessary  and  proper  for  car¬ 
rying  into  execution  the  powers  that  are  delegated,  and  tarter 
away  the  privileges  and  rights  reserved  to  the  States  respec¬ 
tively  by  virtue  of  the  instrument  and  of  the  tenth  amendment 
thereto  that  I  have  just  referred  to?  The  power  of  a  State  to 
regulate  its  public  school  system  is  clearly  among  its  reserved 
powers.  Have  we,  therefore,  a  right  to  provide  in  a  treaty  that 
the  citizens  of  foreign  lands  shall  possess  privileges  in  the 
public  schools  of  the  States  that  are  prohibited  either  by  the 
Constitution  or  by  the  laws  of  the  State  in  which  they  are 
claimed?  If  we  can,  in  defiance  of  the  laws  and  constitution  of  a 
State  incorporate  any  such  provision  in  a  treaty  so  as  to  bind 
the  State,  then  we  can  undoubtedly  deprive  the  State  of  every 
reserved  right  that  it  possesses,  and  rescind  and  annul  its  laws 
and  its  constitution  whenever  they  come  in  conflict  with  the 
treaty-making  power.  I  trample  upon  this  appalling  doctrine. 
If  ever  such  a  deformity  as  this  should  creep  into  our  judicial 
decisions  it  would  disfigure  the  Constitution  to  such  an  extent 
that  its  features  would  no  longer  be  capable  of  recognition.  It 
would  annul  the  charter ;  it  would  frustrate  the  intention  of  the 
men  who  framed  it ;  it  would  undermine  the  entire  framework 
of  the  instrument,  and  it  would  convert  us  from  a  constitutional 
government  into  a  dictatorship,  with  the  States  in  abject  serv¬ 
itude  to  Federal  power,  and  with  the  Executive  in  practical  con¬ 
trol  of  the  destinies  of  the  Republic. 

THE  LEADING  AUTHORITIES  UPON  THE  SUBJECT. 

I  want  now  to  go  over  the  cases.  I  know  it  is  monotonous 
in  the  Senate  to  read  cases,  and  I  will  not  read  them,  because 
I  think  I  can  recollect  them.  There  are  two  lines  of  cases.  The 
first  line  is  made  up  of  the  three  cases  of  Ware  v.  Hylton  (3 
Dallas),  the  case  of  Chirac  v.  Chirac,  from  my  own  State  (2 
Wheaton,  259),  and  a  case  in  Virginia,  Fairfax  v.  Hunter  (7 
Crunch,  603). 

Ware  v.  Hylton  is  the  great  case  that  is  quoted  against  the 
proposition  that  I  am  arguing  here  now.  That  case  was  argued 
by  Marshall.  It  was  the  only  case  that  Marshall  ever  argued 
7035 


1G 


in  the  Supreme  Court  of  the  United  States.  It  was  decided  by 
Justices  Chase,  Patterson,  Cushing,  Wilson,  and  Iredell,  and  the 
case  covers  100  pages.  Let  me  see  if  I  can  give  it  in  a  few 
words. 

Virginia  had  confiscated  the  debts  of  all  British  creditors. 
After  the  Revolution  Congress  made  a  treaty  with  Great  Britain 
providing  that  British  subjects  should  have  the  right  to  prose¬ 
cute  their  claims  in  the  courts  of  the  United  States  without  im¬ 
pediments.  There  was  a  conflict  between  the  act  of  Virginia 
confiscating  the  debts  of  British  subjects  and  the  treaty  of  the 
United  States  giving  British  subjects  without  impediment  the 
right  to  sue.  The  United  States  courts  held  that  the  treaty  pre¬ 
vailed  and  that  the  laws  of  the  State  of  Virginia  were  in  conflict 
with  it  and  were  void.  I  give  you  that  case  in  a  very  short 
compass.  I  want  to  take  the  eases  of  Fairfax  v.  Hunter  and 
Chirac  v.  Chirac. 

Mr.  MALLORY.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to- the  Senator  from  Florida? 

Mr.  RAYNER.  Certainly. 

Mr.  MALLORY.  In  the  case  of  Hylton  v.  Ware  the  Supreme 
Court  expressly  declined  to  give  an  opinion  as  to  whether  a 
treaty  could  override  the  Constitution. 

Mr.  RAYNER.  I  am  coming  to  that  in  a  minute.  I  have  not 
finished  with  Ware  v.  Hylton.  I  have  had  Ware  against  Hylton 
in  my  mind  for  pretty  nearly  forty  years  now,  and  I  am  going 
to  finish  with  it  in  forty  seconds,  if  I  can.  It  occupies  a  hun¬ 
dred  pages  in  the  reports ;  so  I  do  not  intend  to  read  it. 

I  am  coming  now  to  the  other  cases  in  the  first  line.  Mary¬ 
land  passed  a  law,  and  so  did  Virginia,  that  aliens  could  not  hold 
property.  The  Government  made  a  treaty  with  France  that 
aliens  could  hold  property  in  the  United  States.  The  laws  of 
Virginia  and  Maryland  came  into  conflict  with  the  treaty,  and 
the  Supreme  Court  of  the  United  States  held  that  the  treaty 
prevailed.  Those  are  the  two  cases  that  are  cited  to  sustain  the 
proposition  that  Mr.  Butler  is  contending  for  and  against  the 
proposition  that  I  am  advocating.  I  want  to  say  one  word  about 
those  cases.  The  treaty  referred  to  in  Chirac  v.  Chirac  and  in 
Ware  v.  Hylton  was  made  under  the  Articles  of  Confederation. 
It  was  not  made  under  the  Constitution  at  all.  If  you  will  look 
at  the  sixth  article  of  the  Constitution,  you  will  see  that  it  rati¬ 
fies  all  treaties  that  have  been  made.  This  was  one  of  the 
treaties  that  it  ratified,  because  it  was  a  treaty  under  the  Arti¬ 
cles  of  Confederation,  and,  furthermore,  Justice  Cushing,  in 
uniting  in  the  opinion  of  the  court,  says  that  Virginia  was  a 
party  to  the  treaty,  and  being  a  party  to  the  treaty  she  could 
not  abrogate  her  own  act,  and  she  was  estopped  by  having  par¬ 
ticipated  in  it  and  having  been  a  party  to  it.  We  all  recollect 
that  under  the  Articles  of  Confederation  it  was  necessary  that 
nine  States  should  assent  to  a  treaty  before  it  became  effective. 

Let  me  get  to  the  second  line  of  cases,  which  the  Senators 
from  the  Pacific  coast  will  recollect  without  my  going  into  de¬ 
tails.  Both  California  and  Oregon  passed  laws  in  reference  to 
this  question.  California  passed  a  law  that  no  Chinese  laborers 
should  be  employed  by  any  corporation,  and  Oregon  passed  a  law 
that  Chinese  laborers  should  not  be  employed  upon  the  public 
works  of  that  State.  The  question  came  up  under  the  Chinese 
7035 


17 


treaty — and  the  cases  are  reported  in  5  and  6  Sawyer ;  they  are 
circuit  court  cases — the  question  came  up  under  the  Chinese 
treaty,  Does  the  treaty  prevail  or  does  the  law  of  California  and 
the  law  of  Oregon  prevail?  Is  the  law  of  California  a  valid  law 
which  provides  that  no  Chinese  laborer  shall  be  employed  by 
any  corporation  in  the  State  of  California?  Is  the  Oregon  law 
a  valid  law  which  provides  that  no  Chinese  laborer  shall  be 
employed  upon  any  public  works  in  Oregon?  The  Supreme 
Court  said  no.  Why?  Because,  they  held,  the  treaty  having 
provided  that  Chinese  at  that  time  should  have  the  right  to  live 
here,  that  the  right  to  live  here  carried  with  it  the  right  to 
labor  here;  that  a  man  can  not  live  without  earning  a  living; 
that  if  we  had  the  right  by  treaty  to  give  them  the  privilege  of 
coming  here,  the  treaty  by  intendment  and  construction  carried 
with  it  their  right  to  earn  a  living ;  but  the  court  never  touched 
upon  the  reserved  rights  of  the  States. 

Now,  I  want  to  take  up  the  last  case  I  am  going  to  quote  on 
the  other  side  of  this  subject,  because  I  want  to  argue  it  fairly. 

I  come  now  to  the  decision  in  92  United  States,  that  most  unfortu¬ 
nate  decision  of  the  Supreme  Court  of  the  United  States.  It  does 
not  trench  at  all  upon  the  argument  I  am  now  making.  Cali¬ 
fornia  provided  that  no  woman  of  ill  repute  should  come  into 
the  ports  of  California.  That  is  the  Freeman  case  (92  U.  S). 
What  did  the  Supreme  Court  decide  there?  As  the  Senator 
from  Wisconsin  knows,  they  did  what  they  had  never  done  be¬ 
fore.  They  went  back  of  that  statute.  They  never  construed 
the  statute  according  to  the  language  of  the  statute,  but  they 
held  that  California  intended,  by  that  provision  of  her  law,  to 
exclude  Chinese  women,  although  there  was  not  a  word  said 
about  Chinese  women  or  women  of  any  other  race.  It  was  one 
of  those  peculiar  cases  in  which  the  Supreme  Court  of  the  United 
States  has  gone  into  the  motives  of  a  State  legislature  in  order 
to  determine  the  validity  of  her  statutes.  But,  Mr.  President, 
when  they  come  to  decide  that  case  they  never  touched  upon 
the  reserved  rights  of  the  State.  If  you  will  examine  the  Free¬ 
man  case  you  will  see  that  the  Supreme  Court  held  in  that  case 
that  it  was  a  regulation  of  commerce,  and  that  California  had 
passed  a  statute  violating  that  article  of  the  Constitution  which 
gives  the  Congress  of  the  United  States  the  right  to  regulate 
commerce  with  foreign  nations. 

Now  I  want  to  give  my  cases.  I  could  give  numbers  of  other 
cases,  but  before  I  give  my  cases,  I  wish  to  read  one  or  two  ex¬ 
tracts  from  this  author  whom  I  have  quoted  here  upon  several 
occasions,  to  show  how  he  contradicts  himself  upon  this  point, 
and  how,  when  he  is  arguing  against  himself,  he  is  finally  forced 
to  the  conclusion  that  he  has  made  a  mistake,  and  that  you  can 
not  make  a  treaty  which  interferes  with  the  reserved  rights  of 
the  State ;  and  the  only  question  to  his  mind  is  whether  it  is  a 
reserved  right  of  the  State.  If  it  is  once  settled  that  it  is,  when 
you  once  admit  it  is  a  reserved  right  of  the  State,  then  it 
can  not  come  within  the  treaty-making  power,  because  you  can 
no  more  violate  article  10  of  the  Constitution  than  you  can 
violate  any  other  article  of  the  Constitution  in  connection  with 
its  inhibitions  and  limitations. 

Let  me  read  a  very  peculiar  passage  from  this  author  against 
himself.  I  am  quoting  now  from  a  hostile  authority  to  sub¬ 
stantiate  the  propositions  for  which  I  am  contending,  because  I 
7035 - 2 


18 


have  the  most  eminent  authorities  in  the  country  to  sustain 
the  propositions  upon  which  I  stand. 

I  read  from  page  31  of  Butler  on  the  Treaty-Making  Power,  a 
most  interesting  book.  If  it  were  not  all  wrong  on  this  point  it 
would  be  the  most  valuable  book  upon  the  subject  that  we  have 
in  the  United  States.  Upon  page  31,  section  344,  of  this  work 
we  find  the  statement  which  I  shall  read,  made  by  my  friend,  Mr. 
Butler,  whom  I  know  personally  very  well,  and  of  whom  I  think 
very  highly,  and  I  do  not  intend  that  any  criticism  of  mine  upon 
his  work  shall  in  the  slightest  degree  reflect  upon  his  great  in¬ 
dustry  and  talent  as  a  lawyer  and  as  an  author.  He  represents 
the  same  school  that  my  friend  the  Senator  from  Indiana  rep¬ 
resents — the  school  that  believes  that  we  are  a  government  of 
inherent  sovereignty. 

Sec.  344.  State  statutes  upheld;  Chinese  laundry  cases. — It  must 
not  be  presumed,  however,  that  the  Federal  courts  have  always  inter¬ 
fered  to  prevent  State  action  in  regard  to  matters  which  are  wholly 
under  their  control,  and  that  they  have  used  the  treaty-making  power 
as  an  excuse  for  interfering  in  their  internal  affairs.  In  1885  the  same 
learned  justice  of  the  Supreme  Court  who  had  declared  the  San  Fran¬ 
cisco  queue  ordinance  invalid  sustained  a  municipal  ordinance  of  San 
Francisco  imposing  certain  regulations  and  restrictions  upon  laundries, 
and  which  was  as  undoubtedly  aimed  directly  at  the  Chinese  as  the 
queue  ordinance  had  been.  The  Supreme  Court  held,  however,  that  the 
regulation  of  laundries  was  a  matter  which  came  within  the  right  of 
the  municipality,  and  that  treaty  stipulations  as  to  rights  to  live  and 
labor  should  not  be  used  to  prevent  the  proper  enforcement  of  municipal 
regulations. 

Upon  page  56  we  find  the  following  statement : 

The  Supreme  Court  has,  in  regard  to  treaties,  as  it  has  in  regard  to 
Federal  statutes,  ever  kept  in  view  the  exclusive  right  of  States  to 
regulate  their  internal  affairs. 

Upon  page  350,  section  455,  we  find  this  remarkable  statement 
from  the  same  author,  which  seems  to  be  in  direct  conflict  with 
almost  every  other  statement  that  he  has  made  in  this  valuable 
work  upon  this  subject : 

Sec.  455.  Power  must  he  limited,  as  no  unlimited  powers  exist. — 

He  has  been  arguing  in  454  sections  that  unlimited  powers 
exist,  and  when  he  comes  to  the  four  hundred  and  fifty-fifth 
section  he  says  the  powers  must  be  limited,  as  no  unlimited 
powers  exist ;  and  in  order  to  apologize  for  the  remarks  he 
has  made  in  the  antecedent  sections  he  goes  on  to  say : 

After  perusing  the  foregoing  chapters  the  reader  may  think  he  is  jus¬ 
tified  in  presuming  that  the  author  does  not  consider  that  there  are  any 
limitations  whatever  on  the  treaty-making  power  of  the  United  States, 
either  as  to  the  extent  to  or  subject-matter  over  which  it  may  be 
exercised. 

I  should  think  we  were  justified  in  presuming  so  when  he 
has  argued  that  question  in  the  sections  which  have  preceded 
this  section. 

Then  says  the  author : 

Such,  however,  is  not  the  case  ;  the  fact  that  the  United  States  is  a 
constitutional  government  precludes  the  idea  of  any  absolutely  un¬ 
limited  power  existing. 

He  has  never  said  that  before.  He  continues : 

The  Supreme  Corut  has  declared  that  it  must  be  admitted  as  to 
every  power  of  society  over  its  members  that  it  is  not  absolute  and 
unlimited  ;  and  this  rule  applies  to  the  exercise  of  the  treaty-making 
power,  as  it  does  to  every  other  power  vested  in  the  Central  Gov¬ 
ernment.  The  question  is  not  whether  the  power  is  limited  or  unlim¬ 
ited,  but  at  what  point  do  the  limitations  begin. 

If  the  author  had  said  that  in  the  first  section,  it  would  have 
saved  him  the  trouble  of  writing  the  greater  part  of  his  book. 

7035 


19 


Now,  Mr.  President,  let  me  come  to  the  citation  of  my  cases, 
and  I  will  finish  them  very  briefly,  although  it  is  a  subject  very 
difficult  to  cover  in  the  space  I  am  devoting  to  it.  I  have  the 
cases  where  this  identical  question  has  arisen — where  the  Su¬ 
preme  Court  itself,  and  in  approval  of  State  authorities,  has 
held  not  only  that  a  reserved  right  of  the  State  does  not  come 
within  the  treaty-making  power,  but  has  held  that  this  right  of 
a  State  to  admit  a  particular  class  of  people  into  its  educational 
institutions  is  a  reserved  right  of  the  State,  and  the  Government 
has  no  control  over  it  whatever,  either  in  the  treaty-making 
power  or  in  statutes. 

Let  me  read  an  extract  from  the  case  of  Geoffroy  v.  Riggs 
(133  U.  S.,  267),  as  follows: 

The  treaty  power,  as  expressed  in  the  Constitution,  is  in  terms  un¬ 
limited  except  by  those  restraints  which  are  found  in  that  instrument 
against  the  action  of  the  Government  or  of  its  departments,  and  those 
arising  from  the  nature  of  the  Government  itself  and  of  that  of  the 
States. 

In  5  California,  in  the  case  of  The  People  v.  Gerke,  the  court, 
in  its  opinion,  said : 

The  language  which  grants  the  power  to  make  treaties  contains  no 
words  of  limitation  ;  it  does  not  follow  that  the  power  is  unlimited. 
It  must  be  subject  to  the  general  rule,  that  an  instrument  is  to  be 
construed  so  as  to  reconcile  and  give  meaning  and  effect  to  all  its  parts. 
If  it  were  otherwise,  the  most  important  limitation  upon  the  powers  of 
the  Federal  Government  would  be.  ineffectual,  and  the  reserved  rights  of 
the  States  would  be  subverted.  This  principle  of  construction,  as  ap¬ 
plied,  not  only  in  reference  to  the  Constitution  of  the  United  States, 
hut  particularly  in  the  relation  of  all  the  rest  of  it  to  the  treaty-making 
grant,  was  recognized  both  by  Mr.  Jefferson  and  John  Adams,  the  two 
leaders  of  opposite  schools  of  construction. 

I  now  refer  to  the  case  of  The  People  v.  Gallagher,  in  93  New 
York  Reports,  page  438,  and  to  the  case  of  Roberts  v.  The  City  of 
Boston,  5  Cushing,  108,  both  of  which  cases  have  been  cited  with 
approval  by  the  Supreme  Court  of  the  United  States,  and  in 
which  the  question  whether  a  separation  of  the  races  in  the 
public  schools  was  a  violation  of  the  “  privileges  and  immuni¬ 
ties  ”  guaranteed  by  the  Constitution  came  before  the  courts. 
I  quote  from  the  first  case : 

The  school  authorities  have  power,  when,  in  their  opinion,  the  inter¬ 
ests  of  education  will  he  promoted  thereby,  to  establish  schools  for  the 
exclusive  use  of  colored  children ;  and  when  such  schools  are  estab¬ 
lished  and  provided  with  equal  facilities  for  education,  they  may  ex¬ 
clude  colored  children  from  the  schools  provided  for  the  whites. 

The  establishment  of  such  separate  schools  for  the  exclusive  use  of 
the  different  races  is  not  an  abridgement  of  the  “  privileges  or  immuni¬ 
ties  ”  preserved  by  the  fourteenth  amendment  of  the  Federal  Constitu¬ 
tion,  nor  is  such  a  separation  a  denial  of  the  equal  protection  of  the 
laws  given  to  every  citizen  by  said  amendment. 

It  seems  that  the  “  privileges  and  immunities  ”  which  are  protected 
by  said  amendment  are  those  only  which  belong  to  the  citizen  as  a  citi¬ 
zen  of  the  United  States — 

I  beg  my  friends  to  draw  the  distinction  here  between  a  citizen 
of  the  United  States  and  a  citizen  of  a  State,  because  a  man  may 
be  a  citizen  of  the  United  States  without  being  a  citizen  of  any 
State. 

those  which  are  granted  by  a  State  to  its  citizens  and  which  depend 
solely  upon  State  laws  for  their  origin  and  support  are  not  within  the 
constitutional  inhibition  and  may  lawfully  he  denied  to  any  class  or 
race  by  the  State  at  its  will  and  discretion. 

It  seems  also  that  as  the  privilege  of  receiving  an  education  at  the 
expense  of  the  State  is  created  and  conferred  only  by  State  laws,  it 
may  be  granted  or  refused  to  any  individual  or  class  at  the  pleasure  of 
the  State. 

7035 


20 


Mr.  FULTON.  May  I  ask  the  Senator  from  Maryland  a  ques- 
tion? 

Mr.  RAYNER.  Certainly. 

Mr.  FULTON.  I  wish  to  say  first  that  I  am  in  accord  with 
the  Senator’s  views — that  the  Federal  Government  can  not  by 
treaty  invade  the  right  of  a  State  to  regulate  its  own  school 
system.  But  a  question  has  occurred  to  my  mind,  and  I  wish  to 
ask  the  Senator  from  Maryland  if  it  has  occurred  to  his ;  and 
if  so,  whether  he  has  reached  a  conclusion  on  it.  It  is  this : 
Can  the  Congress  and  the  President,  in  the  exercise  of  the  treaty¬ 
making  power,  invade  the  rights  of  a  State — what  we  will  term 
the  “  reserved  ”  rights  of  a  State — to  any  greater  extent  than  it 
can  by  direct  legislation?  We  will  concede,  I  think,  for  in¬ 
stance,  that  Congress  may  not  by  direct  legislation  change  the 
laws  of  a  State  providing  who  may  hold  property  within  the 
State — who  may  own  real  estate.  That  is  a  matter  concerning 
which  a  State  ordinarily  would  have  the  right  to  legislate,  and 
concerning  which  the  Congress  could  not  interfere  by  direct  leg¬ 
islation.  Yet  the  Supreme  Court  has  held  that  by  a  treaty  a 
law  of  a  State  in  that  regard  may  be  annulled. 

Now,  then,  the  question  which  has  arisen  in  my  mind  is  to 
what  extent  may  the  treaty-making  power  invade  the  rights  of 
a  State  beyond  what  Congress  may  invade  them  by  legislation, 
or  can  it? 

Mr.  RAYNER.  And  that,  Mr.  President,  is  not  only  a  very 
pertinent  question,  but  it  is  a  question  that  would  present  a 
great  deal  of  difficulty  in  its  solution  if  certain  cases  in  the 
Supreme  Court,  which  I  am  going  to  quote,  did  not  fully  cover 
it.  That  is  the  point  I  am  coming  to,  Can  the  United  States 
by  treaty  go  beyond  the  delegated  powers  of  the  Constitution? 
Admitting  it  can  not  violate  the  Constitution,  is  the  treaty-making 
function  circumscribed  by  the  Constitution?  The  first  case  that 
arose  was  a  California  case,  which  was  quoted  by  the  Supreme 
Court  with  approval.  It  was  The  People,  ex  rel.  the  Attorney- 
General,  v.  Nagle.  I  read  from  1  California,  232. 

The  State  of  California,  as  the  Senator  from  California  will 
remember,  had  imposed  a  license  upon  foreigners  engaged  in 
working  gold  mines  in  that  State,  and  the  question  arose 
whether  California,  under  the  treaty,  had  the  right  to  pass  such 
a  law.  The  court  said.: 


OPINION  OF  COURT. 

But  even  if  the  provisions  of  the  statute  did  clash  with  the  stipu¬ 
lations  of  that,  or  of  any  other  treaty,  the  conclusion  is  not  deducible 
that  the  treaty  must  therefore  stand  and  the  State  law  give  way.  The 
quesion  in  such  case  would  not  be  solely  what  is  provided  for  by  the 
treaty,  but  whether  the  State  retained  the  power  to  enact  the  con¬ 
tested  law  or  had  given  up  that  power  to  the  General  Government.  If 
the  State  retains  the  power,  then  the  President  and  Senate  can  not  take 
it  away  by  a  treaty.  A  treaty  is  supreme  only  when  it  is  made  in  pur¬ 
suance  of  that  authority  which  has  been  conferred  upon  the  treaty¬ 
making  department  and  in  relation  to  those  subjects  the  jurisdiction 
over  which  has  been  exclusively  intrusted  to  Congress.  When  it  tran¬ 
scends  these  limits,  like  an  act  of  Congress  which  transcends  the  con¬ 
stitutional  authority  of  that  body,  it  can  not  supersede  a  State  law 
which  enforces  or  exercises  any  power  of  the  State  not  granted  away 
by  the  Constitution.  To  hold  any  other  doctrine  than  this  would,  if 
carried  out  into  its  ultimate  and  possible  consequences,  sanction  the 
supremacy  of  a  treaty  which  should  entirely  exempt  foreigners  from 
taxation  by  the  respective  States  or  which  should  even  undertake  to 
cede  away  a  part  or  the  whole  of  the  acknowledged  territory  of  one 
of  the  States  to  a  foreign  nation. 

7035 


21 


In  addition  to  this  case,  I  want  to  refer  to  the  important 
cases  in  119  Federal  Reporter,  page  381,  and  in  5  Howard, 
page  613,  to  the  opinion  of  Justice  Daniel,  which  is  concurrent 
upon  the  proposition  from  which  I  quote,  and  which  reads  as 
follows : 

This  provision  of  the  Constitution,  it  is  to  be  feared,  is  sometimes 
applied  or  expounded  without  those  qualifications  which  the  character 
of  the  parties  to  that  instrument,  and  its  adaptation  to  the  purposes 
for  which  it  was  created,  necessarily  imply.  Every  power  delegated  to 
the  Federal  Government  must  be  expounded  in  coincidence  with  a  per¬ 
fect  right  in  the  States  to  all  that  they  have  not  delegated  ;  in  coinci¬ 
dence,  too,  with  the  possession  of  every  power  and  right  necessary  for 
their  existence  and  preservation ;  for  it  is  impossible  to  believe  that 
these  ever  were,  in  intention  or  in  fact,  ceded  to  the  General  Govern¬ 
ment.  Laws  of  the  United  States,  in  order  to  be  binding,  must  be 
within  the  legitimate  powers  vested  by  the  Constitution.  Treaties,  to 
be  valid,  must  be  made  within  the  scope  of  the  same  powers,  for  there 
can  be  no  “  authority  of  the  United  States,”  save  what  is  derived 
mediately  or  immediately,  and  regularly  and  legitimately,  from  the 
Constitution.  A  treaty,  no  more  than  an  ordinary  statute,  can  arbi¬ 
trarily  cede  away  any  one  right  of  a  State  or  of  any  citizen  of  a 
State. 

I  wish  to  refer  now  to  a  case  in  118  Federal  Reporter. 
This  was  a  case  where  a  Chinese  girl  filed  a  petition  for  a 
mandamus  against  the  public  school  trustees  of  San  Francisco, 
I  think,  asking  admission  into  the  white  school.  It  was  denied. 
The  case  went  to  the  United  States  court,  and  the  court  said 
that  she  had  no  right  to  be  admitted  into  the  white  public  schools 
of  California ;  that  there  were  schools  set  apart  for  her,  and 
she  could  go  into  those  schools.  Is  it  not  a  strange  thing  that 
California  can  pass  a  law  providing  that  the  Chinese  children 
who  live  there  shall  be  separated  in  the  schools,  and  can  not  pass  a 
law  that  the  Chinese  children  who  do  not  live  there,  those  who 
shall  come  there  hereafter  shall  be  not  separated,  but  that 
they  must  be  put  in  the  white  schools? 

Mr.  FLINT.  Mr.  President - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Maryland 
yield  to  the  Senator  from  California? 

Mr.  RAYNER.  Certainly. 

Mr.  FLINT.  The  language  of  the  statute  is  “  Mongolian,” 
not  “  Chinese.” 

Mr.  RAYNER.  Yes,  “  Mongolian.” 

Mr.  FLINT.  It  includes  Japanese. 

•Mr.  RAYNER.  The  Japanese  hold  that  they  are  not  Mon¬ 
golians  ;  but  outside  of  that,  I  am  on  a  proposition  of  law  now. 
The  Senate  will  sustain  me  in  the  proposition,  without  quoting 
the  cases  that  the  court  has  absolutely  decided  that  children  of 
Chinese  parents  have  no  right  to  go  into  the  same  schools  with 
white  children  in  California ;  and  that  has  been  approved  of 
by  the  Supreme  Court  of  the  United  States.  How  is  it  possible 
to  hold  that  the  Chinese  children  who  live  there  can  be  separated 
and  segregated,  but  that  children  living  in  China  or  Japan  who 
may  come  here  can  not  be  separated  and  segregated,  but  must  go 
into  the  white  schools? 

Let  me  get  back  again  now  to  what  Jefferson  said — it  is  just 
three  lines.  He  said  it  long  ago,  but  not  too  long  ago  to  be 
forgotten,  and  this  is  the  proposition  on  which  Mr.  Butler  says 
Mr.  Jefferson  has  been  reversed : 

By  the  general  power  to  make  treaties,  the  Constitution  must  have 
intended  to  comprehend  only  those  objects  which  are  usually  regulated 
by  treaty  and  can  not  be  otherwise  regulated.  It  must  have  meant 
7035 


22 


to  except  out  of  these  the  rights  reserved  to  the  States,  for  surely  the 
President  and  Senate  can  not  do  by  treaty  what  the  whole  Government 
is  interdicted  from  doing  in  any  way. 

That  is  a  concise  but  a  stately  statement  of  the  proposition 
upon  which  I  have  planted  myself  to-day. 

The  last  case  I  shall  cite  is  the  case  known  as  the  “  Dispen¬ 
sary  case,”  decided  by  Judge  Simonton  in  the  South  Carolina 
circuit  (54  Fed.  Rep.,  969).  It  is  so  pertinent  to  the  subject- 
matter  of  this  discussion  that  I  shall  quote  an  extract  from  the 
opinion  of  Judge  Simonton  thereon : 

It  is  urged  on  behalf  of  these  complainants  that  they  are  Italian 
subjects,  and  are  protected  by  the  treaty  stipulations  between  Italy  and 
the  United  States.  The  language  of  the  treaty  on  this  point  is  as 
follows  : 

“Art.  2.  The  citizens  of  each  of  the  high  contracting  parties  shall 
have  liberty  to  travel  in  the  States  and  Territories  of  the  other  ;  to 
carry  on  trade,  wholesale  and  retail ;  to  hire  and  occupy  houses  and 
warehouses  ;  to  employ  agents  of  their  choice,  and  generally  to  do  any¬ 
thing  incident  to  or  necessary  for  trade  upon  the  same  terms  as  the 
natives  of  the  country,  submitting  themselves  to  the  laws  there  estab¬ 
lished. 

“Art.  3.  The  citizens  of  each  of  the  high  contracting  parties  shall 
receive  in  the  States  and  Territories  of  the  other  the  most  constant  pro¬ 
tection  and  security  for  their  persons  and  property,  and  shall  enjoy  in 
this  respect  the  same  rights  and  privileges  as  are  or  shall  be  granted 
to  the  natives,  on  their  submitting  themselves  to  the  conditions  im¬ 
posed  upon  the  natives.” 

Under  these  articles  the  complainants  have  the  same  rights  as  citi¬ 
zens  of  the  United  States.  It  would  be  absurd  to  say  that  they  had 
greater  rights.  We  have  seen  that  the  right  to  sell  intoxicating 
liquors  is  not  a  right  inherent  in  a  citizen,  and  is  not  one  of  the 
privileges  of  American  citizenship ;  that  it  is  not  within  the  protec¬ 
tion  of  the  fourteenth  amendment ;  that  it  is  within  the  police  power. 
The  police  power  is  a  right  reserved  by  the  States,  and  has  not  been 
delegated  to  the  General  Government.  In  its  lawful  exercise  the 
States  are  absolutely  sovereign.  Such  exercise  can  not  be  affected  by 
any  treaty  stipulations. 

In  addition  to  the  cases  that  I  have  cited,  and  in  closing  the 
entire  reference,  I  desire  to  now  advert  to  several  diplomatic 
precedents  of  great  value  upon  this  subject.  The  first  incident 
took  place  during  the  administration  of  Mr.  Marcy  over  the 
Department  of  State,  and  I  quote  his  opinion  in  the  matter : 

[Mr.  Marcy,  Secretary  of  State,  to  Mr.  Mason,  minister  to  France, 

September  11,  1854.] 

It  is  not,  as  you  will  preceive  by  examining  Mr.  Drouyn  de  L’Huys’s 
dispatch  to  the  Count  de  Sartiges,  the  application  of  the  “  principle  ” 
to  the  particular  case  of  M.  Dillon  which  is  to  be  disavowed,  but  the 
broad  and  general  proposition  that  the  Constitution  is  paramount  in 
authority  to  any  treaty  or  convention  made  by  this  Government. 
This  principle,  the  President  directs  me  to  say,  he  can  not  disavow, 
nor  would  it  be  candid  in  him  to  withhold  an  expression  of  his  belief 
that  if  a  case  should  arise  presenting  a  direct  conflict  between  the 
Constitution  of  the  United  States  and  a  treaty  made  by  authority 
thereof,  and  be  brought  before  our  highest  tribunal  for  adjudication, 
the  court  would  act  upon  the  principle  that  the  Constitution  was  the 
paramount  law. 

The  second  incident  also  took  place  during  the  administration 
of  Mr.  Marcy  : 

L Mr.  Marcy,  Secretary  of  State,  to  Mr.  de  Figar.iere,  Portuguese  charge 

d’affaires,  March  27,  1855.] 

Although  the  language  of  Article  II  of  the  consular  convention 
between  the  United  States  and  France  of  February  23,  1853,  exempt¬ 
ing  consuls  from  compulsory  process,  is  general  and  unrestricted  in 
terms,  “  yet  it  is  here  held  that  it  does  not  take  away  the  right 
which  the  defendant  in  a  criminal  prosecution  has  to  resort  to  such 
process  to  procure  the  witnesses  in  his  favor,  for  this  right  is  secured 
to  him  by  the  express  language  of  the  United  States  Constitution.” 
That  instrument  is  paramount  in  authority  to  the  laws  of  Congress 
or  of  any  of  the  States,  and  to  all  treaty  stipulations. 

7035 


23 


At  a  very  late  date  the  question  arose  with  the  Department 
of  State,  presided  over  by  Secretary  Hay,  and  I  read  the  conclu¬ 
sion  that  the  Secretary  reached  upon  this  subject,  quoting  from 
Mr.  Moore’s  valuable  treatise  upon  international  law : 

July  19,  1899,  the  Department  of  State  declined  a  proposal  of  the 
British  Government  to  negotiate  a  treaty  to  prevent  discriminatory 
legislation  by  the  several  States  of  the  United  States,  subjecting 
foreign  fire-insurance  companies  to  higher  taxes  than  domestic  com¬ 
panies.  The  reason  given  for  the  declination  was  that  the  negotiation 
of  such  a  treaty  would  probably  be  futile  on  account  of  the  indisposi¬ 
tion  of  the  people  to  permit  any  encroachment  upon  the  exercise  of 
powers  of  the  local  legislation. 

ARE  THE  PUBLIC  SCHOOLS  OF  CALIFORNIA  THE  PROPERTY  OF  CALIFORNIA 

OR  OF  THE  UNITED  STATES  t 

Is  it  necessary  for  me  to  say  anything  further?  Are  the 
public  schools  of  California  the  property  of  California  or  the 
property  of  the  United  States?  Does  the  public  school  system 
of  California  or  of  any  other  State  belong  to  the  State  that 
creates  and  supports  it,  or  to  the  Government  that  has  neither 
created  nor  sustained  it?  Does  this  subject  come  within  the 
treaty-making  power?  Does  it  come  within  the  delegated  pow¬ 
ers  of  the  Constitution?  Have  the  United  States  the  right  to  in¬ 
corporate  into  a  treaty  a  provision  that  the  States  shall,  out  of 
their  own  treasury,  educate  the  citizens  of  foreign  governments? 
Is  there  any  power  in  any  treaty  to  deprive  any  of  the  States 
of  their  reserved  right  to  regulate  and  manage  their  local  affairs 
according  to  their  own  usages  and  statutes?  Are  not  foreign 
governments  that  deal  with  us  presumed  to  know  the  nature 
and  the  character  of  our  institutions,  and  is  not  this  principle 
fully  established  by  an  unbroken  line  of  precedents  passed  upon 
by  the  State  Department  from  time  immemorial?  There  can 
be  but  one  response  to  all  these  inquiries,  in  my  opinion,  and 
as  the  result  of  the  investigation  that  I  have  given  to  this  sub¬ 
ject  I  now  assert,  in  the  language  of  the  resolutions,  that  the 
public  school  systems  of  the  States  belong  to  the  States  along 
with  all  of  their  reserved  rights ;  that  the  Government  has  no 
power  whatever  to  meddle  with  them  or  control  them,  and  it  was 
the  duty  of  the  President  to  have  informed  the  Government  of 
Japan  as  soon  as  the  question  arose,  no  matter  what  his  feelings 
or  sentiments  may  have  been,  that  the  subject  was  entirely  with¬ 
out  the  domain  of  his  jurisdiction. 

THE  CONCLUSIONS  I  HAVE  REACHED. 

I  shall  now,  in  conclusion,  summarize  the  results  that  I  have 
reached.  I  am  not  here  for  the  purpose  of  denying  to  the  Gov¬ 
ernment  the  power  to  cover  by  treaty  every  right,  privilege,  and 
concession  that  comes  within  the  treaty-making  power  in  order 
to  carry  out  the  objects  and  purposes  of  this  Government  as 
defined  in  the  Constitution.  I  do  not  for  a  moment  set  up  the 
reserved  rights  of  the  States  against  the  exercise  of  any  con¬ 
stitutional  power  that  may  be  incorporated  in  a  treaty.  I  ad¬ 
mit  that  the  United  States  can  enter  into  any  treaty  with  any 
foreign  power  in  reference  to  any  subject  embraced  in  the  Con¬ 
stitution.  I  deny,  however,  that  it  possesses  any  inherent  right 
to  make  a  treaty,  and  I  claim  that  the  treaty-making  power 
lies  in  grant  and  not  in  sovereignty  and  must  be  construed  in 
pari  materia  with  all  the  other  clauses  of  the  instrument  that 
creates  it,  and  that  in  interpreting  the  treaty-making  power  we 
must  be  governed  by  the  principles  of  international  law,  its 
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usages  and  its  practices,  as  those  principles,  usages,  and  prac¬ 
tices  appertain  to  our  form  of  constitutional  government.  I 
utterly  deny  that  we  have  any  right  to  make  a  treaty  that 
violates  the  Constitution,  or  deprives  the  States  of  their  reserved 
rights  to  conduct  their  local  affairs  over  which  the  Federal  Gov¬ 
ernment  has  no  jurisdiction,  and  which  they  alone  have  the 
right  to  administer  according  to  their  own  constitutions  and 
statutes. 

THE  RESERVED  RIGHTS  OF  THE  STATES. 

As  I  said  at  the  commencement,  this  is  a  grave  and  profound 
question  that  we  have  encountered.  The  local  problem  sinks 
into  insignificance  beside  the  great  principle  that  is  here  in¬ 
volved.  It  affords  a  timely  warning  and  admonition  that  at 
any  time,  through  the  treaty-making  power,  a  deadly  blow  may 
be  aimed  at  the  entire  fabric  of  our  institutions,  and  they  can  be 
leveled  to  the  ground.  If  the  President  can  practically  make  a 
treaty,  and  that  is  what  he  is  doing  in  other  directions,  and 
dispose  of  the  reserved  rights  of  the  States,  then  the  treaty¬ 
making  power  is  above  and  beyond  the  Constitution,  and  the 
supremacy  of  the  States  within  their  own  borders  departs  and 
vanishes  forever.  If  the  Democratic  party  accepts  such  a  doc¬ 
trine  as  this,  then  it  has  also  parted  with  its  birthright  and 
abandoned  the  historic  ground  upon  which  it  has  stood  for  over 
a  century.  I  believe  in  the  complete  exercise  by  the  Federal 
Government  of  every  Federal  power  contained  in  the  Constitu¬ 
tion,  but  beyond  the"  delegated  powers  and  the  right  to  pass  all 
laws  necessary  to  execute  the  delegated  powers,  I  would  never 
justify  the  slightest  encroachment  upon  the  reserved  rights  of 
sovereign  States  within  their  own  borders.  In  the  night  of  our 
despair,  this  reserved  right  of  the  States  is  the  only  constella¬ 
tion  that  for  our  party  has  no  “fellow  in  the  firmament.”  We 
were  born  under  its  horoscope,  and  if  there  is  any  life  left  in  us 
we  must  forsake  the  worship  of  grotesque  and  meaningless 
idols  and  follow  it  like  a  pillar  of  fire  to  the  land  of  our  nativity. 

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